The defendants having remained in possession, the lease endured for the period covered by the demand in suit, and there is no ground for our disturbing the result of the trial, upon the conceded facts. Judgment affirmed, with costs. All concur. BRILL v. BARNETT. (Supreme Court, Appellate Term. April 24, 1906.) TRIAL EXCLUSION OF EVIDENCE. In an action to recover for work done in sponging cloth at defendant's order, a counterclaim was based on plaintiff's failure to perform an alleged agreement to examine all cloth, and advise defendant of any defects, and defendant testified that he had no conversation with plaintiff at the time that the particular goods in question were sent. Held that, it appearing that the cloth in question was but a part of several lots sent at different times, it was error to exclude evidence as to the counterclaim, on the ground that the matter had been covered by the testimony. Appeal from Municipal Court, Borough of Manhattan, Twelfth District. Action by Soloman Brill against Abraham M. Barnett. From a judgment in favor of plaintiff, defendant appeals. Reversed. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Ralph Barnett, for appellant. Leon H. Prince, for respondent. PER CURIAM. It appears that proof in support of the defendant's counterclaim was improperly excluded, and there should be a new trial of the cause. The plaintiff's claim was for work done in sponging cloth at the defendant's order, and the counterclaim was based upon the plaintiff's failure to perform an alleged agreement, whereby he had undertaken to examine all cloth thus sent to him, and to advise the defendant of defects before sponging in order that the defendant might cause the cloth to be returned to the jobber from whom he had purchased it. In answer to the court the defendant had stated that he had no conversation with the plaintiff at the time the particular goods were sent, and, apparently, this was taken by the court and by the plaintiff's counsel as meaning that at no time had there been any conversation or course of dealing between the parties from which the agreement, alleged by the defendant, was to be inferred, since all future evidence. to this end was excluded, not for inartificiality in the form of the questions, but on the ground that the matter had been already covered by the testimony. The cloth which was the subject of the counterclaim was but a part of several lots sent at different times to the plaintiff at the defendant's order, and the fact that nothing was said when one lot was sent did not conclude the issue of an agreement, as against the defendant, if the agreement could have been established by prior conversations, or by a course of dealing, or by some well-defined and recognized custom of the trade. Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. and 132 New York State Reporter HERSCHKOVITZ v. BRADLEY et al. (Supreme Court, Appellate Term. April 24, 1906.) WORK AND LABOR-ACTION-EVIDENCE. In an action for services evidenced by pay tickets issued by the defendants, evidence held sufficient to justify a judgment in favor of plaintiff. Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Bennie Herschkovitz against William Bradley and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. John H. Mulcahey and S B. Livingston, for appellant. Emanuel Klein, for respondent. BISCHOFF, J. The action was for work, labor, and services in removing snow from the streets of the city, at the instance and request of the defendant Bradley, a general contractor with the municipality, and the items of work were evidenced by pay tickets, issued, in accordance with the system adopted by the defendant, to the plaintiff's assignor or his servants. According to this system, "snow tickets" were given by the defendant's agents upon the streets to drivers of dump carts when a load of snow was taken, which tickets were transferred at the dock, where the load was dumped, for "pay tickets," showing that the work was done. The testimony for the plaintiff disclosed, generally, that all tickets in his hands were received in the usual course of dealing under this system, and these tickets were delivered in gross to the defendant, who gave a receipt for the number. Each ticket called for 33 cents compensation for work done, and while, of course, not of the character of negotiable instruments, the ticket was as between the parties, evidence of the fact as to which they, by agreement, had made it the token-that is, the fact of the performance of so much work at an established price. The defense was directed to the proposition that the plaintiff's assignor did not receive these tickets. in the usual course of dealing which they purported to evidence, the claim being that the pay tickets were distributed to drivers at the docks from pads of 100 tickets, each ticket consecutively numbered and torn, one at a time, from the pad, as a driver unloaded his car. According to the defendant's witnesses, who checked off the tickets received from the plaintiff, some of them were consecutively numbered from 1 to 100 and in one instance from 1 to 147, and the defendant's contention is that there must have been fraud, or that, in any event, the value of the evidence afforded by the possession of the tickets was destroyed, since the plaintiff's assignor did not use more than 46 carts at a time. This does not follow from the facts presented. According to the defendant's own evidence, there was a complete checking system governing the issuance of these tickets, and if, in fact, there had been any irregularity, the proof which was peculiarly available to the defendant should have been produced by him. Again, there were several dumping docks within the territory covered by the transactions in suit, yet the system of giving tickets, one at a time, was proven only with regard to one dock, and it was not shown that the tickets, apparently alike, had been issued from pads at none but this dock. For all that appears, the plaintiff's tickets may have been issued at different docks, and his drivers may have been given tickets exclusively from a particular book, at the election of the distributing agents, in the instances. referred to, or, indeed, error may have crept into the method of checking off the tickets received from the plaintiff by the defendant's employés. It was thus by no means clear that these tickets were not actually received in the usual course of business, and the prima facie proof afforded by the plaintiff's evidence of possession, and the general manner in which that possession had been obtained, sufficed for the favorable finding of the court. The judgment should be affirmed, with costs. All concur. (50 Misc. Rep. 651) JONES v. UNION RY. CO. (Supreme Court, Appellate Term. April 24, 1906.) 1. ELECTRICITY-NEGLIGENCE-EVIDence. In an action for the killing of a horse by electricity by coming in contact with a wire which had been thrown over and hung from the feed wire of a street railway, where the evidence did not show how the wire had been placed there, nor how long it had remained, except that it was not there eight minutes before the accident, the evidence was insufficient to show the railway company guilty of negligence. 2. SAME CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. In an action for the killing of a horse by electricity by coming in contact with wire thrown over the feed wire of a street railway while being driven by the plaintiff, whether the plaintiff was guilty of negligence was a question for the jury. [Ed. Note. For cases in point, see vol. 18, Cent. Dig. Electricity. § 11.] Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Sylvester Jones against the Union Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial granted. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. SCOTT, P. J. The defendant operates its railway by means of an overhead trolley. About half past 5 o'clock on the 20th day of August, 1905, the plaintiff was driving a truck with two horses along defendant's track, when one of the horses came into contact with a wire which had by some means been thrown over and then hung from defendant's feed wire. The horse received an electrical shock, from which it immediately died. The wire was not of a kind used by the defendant, and evidently was no part of its equipment, and the circumstances pointed irresistibly to the conclusion that some mischievous person had thrown this loose piece of wire over defendant's feed wire, and left it dangling there. There was no evidence how long the wire had been in this position, except that one of defendant's motormen said that he had and 132 New York State Reporter passed the spot eight minutes before and had not observed it. Under these circumstances, there was no evidence of defendant's negligence to submit to the jury. We think, also, that the justice erred in withdrawing from the jury altogether any question as to plaintiff's negligence. While he had a right to assume that the road would be unobstructed, he was not wholly relieved from the obligation to be reasonably vigilant in watching for unexpected and unusual obstacles, and it was at least a question for the jury whether, if he had been so vigilant, he would not have seen the wire before he reached it. Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur. (50 Misc. Rep. 650) ROSS v. NEW ENDICOTT CO. (Supreme Court, Appellate Term. April 24, 1906.) JUDGMENT-CONFORMITY-FACTS AND EVIDENCE. Where in an action for services the only question litigated was the authority of the defendant's engineer to employ plaintiff, and the court found in plaintiff's favor on such question, it was error to give him judgment for only half his claim. Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Frederick C. Ross against the New Endicott Company. From a judgment in favor of defendant, plaintiff appeals. Reversed. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. George P. Breckenbridge, for appellant. Richard T. Greene, for respondent. SCOTT, P. J. Plaintiff sues for $97, claimed to be due for work performed at defendant's hotel. He was employed by defendant's chief engineer, and the only question litigated or sought to be litigated by defendant was the engineer's authority to employ plaintiff. If the engineer was vested with the authority to make the employment, the plaintiff was entitled, under the evidence, to the amount for which he sued. For some reason not apparent upon the record, the learned justice, while finding in plaintiff's favor upon the question of employment, gave him judgment for exactly one-half of his claim. The defendant does not appeal, and we are therefore not called upon to consider its exceptions, nor to examine the question whether or not the defendant's engineer had the extent of authority claimed for him. On plaintiff's appeal, however, we must reverse the judgment for inadequacy and inconsistency. If the plaintiff was entitled to recover at all, he was entitled to all he sued for. Since the court had found that he was entitled to recover something, it was error to cut his claim in two. Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur. (50 Misc. Rep. 642) CURTIS BLAISDELL CO. v. ROSS et al. DAMAGES-INJURY TO HORSE-EXCESSIVE DAMAGES. Where, in an action for injuries to a horse, plaintiff claimed $100 as the depreciation in the value thereof, and there was nothing to show that he was put to any expense for medical attendance or for procuring a horse to take the place of the one injured, the damages awarded must be limited to the depreciation in the value of the horse. [Ed. Note. For cases in point, see vol. 15, Cent. Dig. Damages, § 280.] Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by the Curtis Blaisdell Company against Marion J. Ross and others. From a judgment for plaintiff, defendants appeal. Reversed, and new trial granted. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Seth B. Robinson (Henry H. Hull, of counsel), for appellant. William C. Relyea, for respondent. SCOTT, P. J. The plaintiff's coal cart, drawn by three horses, was proceeding at a walk up First avenue between the easterly car track and the curb, near the track. A wagon, said to belong to defendants, was coming up the avenue at a trot on the easterly track. Upon the wagon was loaded a section of iron railing, which projected outside the body of the wagon, but not outside the hubs of the wheels. In some way the projecting railing struck and cut the rump of one of plaintiff's horses, causing the injury for which damages are sought. The only evidence given by plaintiff as to how the accident happened. is that of its driver, whose account is almost unintelligible, but which appears to be to the effect that the injury happened when defendants' wagon was attempting to pass the coal cart. The story of defendants' driver, corroborated by a bystander, is that plaintiff's driver, in attempting to pass some wagons standing in the roadway, pulled his team. suddenly to the left, throwing his outside horse into a position where defendants' driver could not avoid hitting him. This story seems at least as probable and as well supported as that told by plaintiff's driver. The damages are excessive. The plaintiff only claimed $100 as the depreciation in the value of the horse, and has been awarded $190. It appeared that plaintiff was put to no actual expense for medical attendance or for procuring a horse to take the place of the injured one, so that its damage should have been limited to the depreciation in the value of the horse. There was no evidence of defendants' partnership. On the whole case, justice will be best served if there be a new trial. Judgment reversed, and new trial granted, with costs to abide the event. All concur. |